To provide a procedure for disputing parties to present and resolve their cases in as fair a manner as possible Controlled by strict rules of evidence and procedure Role of the Adversary System Major features of the adversary system ID: 161193
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Slide1
The Adversary SystemSlide2
To provide a procedure for disputing parties to present and resolve their cases in as fair a manner as possible
Controlled by strict rules of evidence and procedure
Role of the Adversary SystemSlide3
Major features of the adversary system
Role of the partiesRole of the judgeStandard and burden of proof
Need for legal representationNeed for rules of evidence and procedure
Features of the Adversary SystemSlide4
Party Control
- Each party controls their own case (within the rules of evidence and procedure
)Parties are responsible
for:
Instigating the proceedings
– the person who believes they have been wronged (plaintiff is civil, prosecution in criminal) brings the case to
court
Investigating the facts
Role of the partiesSlide5
Parties are also responsible
for:Deciding which facts to bring to court – each side decides which evidence they wish to present to court (although prosecution must disclose all evidence even if it is not beneficial
)
Investigating the law
that is relevant to the case
Role of the partiesSlide6
Parties are also responsible
for:Deciding whether to have a jury in a civil case
Choosing whether to have legal representation
Role of the partiesSlide7
Party control
allows the parties to feel that they are in control of the situation and are responsible for the outcome
Satisfies the competitive
spirit
Gives people the opportunity to fight to win their case – leads to a sense of
satisfaction
Role of the partiesSlide8
In civil cases – it means that cases can be resolved
But it makes the process expensive – which means that not everyone has
effective access to mechanisms to resolve disputes
The elementsSlide9
Impartial umpire
- Ensures the court processes and procedures are carried out according to the rules of evidence and
procedureMay
only ask questions to clarify matters
Minimises unfairness to either party
Role of the JudgeSlide10
Decides:
Admissibility of evidenceQuestions of law
Directs the jury whether there is one
Decides the outcome
of a case where there is no jury
Role of the judgeSlide11
For the adversary system to work effectively the judge must be
impartialEssential that the decision maker (judge or jury) is
independent from the case
Judge has no prior knowledge of the case before hearing the evidence presented
Role of the JudgeSlide12
The impartial, independent judge
ensures a fair and unbiased hearing
The elementsSlide13
Burden of proof lies
with the party bringing the case to courtCriminal – prosecution
Civil – plaintiffPerson who brings the case must prove the other party was in the wrong
Burden and Standard of ProofSlide14
Standard of proof – the strength of evidence needed to prove the case
Criminal – beyond reasonable doubtCivil – on the balance of probabilities
Burden and Standard of ProofSlide15
Essential elements of the adversary system
Burden of proof indicates who must begin the battle
Standard of proof indicates the strength of proof required to decide the winner
Burden and Standard of Proof Slide16
Burden and standard of proof
ensure a fair and unbiased hearing
The elementsSlide17
Legal representatives – prepare the case on behalf of the
parties
Legal representatives are experts – are familiar with rules of evidence and procedure
Help to ensure that the parties are able
to present their best possible case
Assists in achieving a just outcome
Need for legal representationSlide18
Bringing out the truth
and showing your case in the best light depends on being legally represented – with the best possible
lawyerPresenting a case without legal representation is very difficult and can result in an
unjust outcome
Need for legal representationSlide19
For the adversary system to work effectively there needs to be
equal
representationParties should have an equal opportunity to present their
cases
Truth should be brought out
through both sides bringing their evidence and cross examination by the other side
Need for legal representationSlide20
If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect result – so it will not be a
fair and unbiased hearing
The elementsSlide21
A person who can afford a more competent barrister is more likely
to win than a person represented by a less experienced barrister this means that there is not
effective access for everyone
The elementsSlide22
Evidence is concerned with
proof of factsRules of evidence aim to ensure fair and equal treatment
Need for rules of evidence and procedureSlide23
Evidence can be
Oral – given by witnessesSworn statements (called an affidavit)
Objects – murder weapons, photos diagrams, tape-recordingCircumstances and facts (
called circumstantial
evidence)
Need for rules of evidence and procedureSlide24
Adversary system relies more heavily on oral evidence given by witnesses than documentary evidence
Need for rules of evidence and procedureSlide25
Rules of evidence are primarily for the protection of the
parties
Ensure thatParties are treated fairlyJury is not distracted by irrelevant material
Unreliable or illegally obtained evidence is not heard by the court
Evidence is not unduly prejudicial to the defence
Prior convictions are not admissible
Need for rules of evidence and procedureSlide26
Rules of procedure provide a framework in which court cases take place
Provide the way in which the court will try to bring about a resolution
Procedures are aimed at treating both sides fairly
Create at atmosphere of
formality
so that the decision is followed
Need for rules of evidence and procedureSlide27
Assist the parties in achieving a just outcome
Rule of evidence keep the contest fairRules of procedure should
assist the truth to emerge
Need for rules of evidence and procedureSlide28
Hearsay evidence
Prior convictions (unless used as propensity evidence)Irrelevant evidence
OpinionEvidence obtained illegallyPrivileged information
Evidence not admissibleSlide29
Only allow certain types of evidence to ensure a
fair and unbiased hearingRules of procedure help assist timely resolution of disputes
The elementsSlide30
The jury system is
NOT a feature of the adversary system – it is an entirely different system!
Juries